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Rona misses point in decision to pursue trial

With the need to cultivate Canadians' collective benificence to assist in thwarting the current hostile takeover bid by U.S. Lowe's Corp., you would think that Rona would not so cavalierly fritter away its goodwill - particularly not by public acts of demonstrable stupidity in a Canadian courtroom. But that is what it did.

Kai Malstrom, a well-liked wheelchair bound co-ordinator at Rona's Barrie, Ont., who designed and co-ordinated projects, was surprised when Rona decided to hold a training session in its inaccessible second-floor training centre. Rona should have known of its duty to accommodate the disabled and that having the session on a floor unreachable to Malstrom was illegal. Its plan to have a co-worker later "share with Malstrom what he had learned" in no way complied with the law.

Employers should have a sense of what court decisions are likely to be publicized and what impact, win or lose, coverage could have on them

Malstrom's co-workers were more inclusive and decided to use a forklift truck to get Malstrom and his wheelchair, up to the session and back. Being in a rush, the person moving Malstrom did not bother with straps on the way down. This was a breach of not only Ontario's safety legislation but several provisions in Rona's policies and safety training. It also breached common sense.

Malstrom and one of his colleagues had informed Kerry Barton, the assistant store manager, of the plan to use the forklift a day earlier. He reminded them of the plan to train Malstrom separately and told them that he was uncomfortable with their proposal. He assumed that would be the end of it and was absent the next day the hoisting of the wheelchair occurred.

Admittedly, Barton could have ordered them not to do it, but he said he believed his advice was sufficient. Linda Gierak, Rona's human resources manager who conducted the investigation, wrote "it would break my heart if someone was to lose their job as a result of Kai's request to be lifted to training. I do feel even disciplinary action would affect store morale negatively as everyone loves Kai and was just trying to give him the training access he deserves to obtain."

Rona chose to fire Barton anyway. His misconduct could hardly be categorized as intentional - as is legally required - because he was not present when the incident occurred. Rona's case for dismissal was not winable, yet the company persisted all the way to trial. The judgement rendered earlier this month by Justice Peter Lauwers of Ontario's Superior Court provided Barton, who was 64 and had been employed for less than four years, with 10 months pay, or $63,900 plus interest and legal costs, as result of the difficulty of securing comparable employment.

One would think Rona's law firm would have emphasized the futility of its case. In Ontario, there are mediations and at least one judicially conducted pre-trial in an attempt to settle a case before going to court. There also are significant financial disincentives to proceeding without some confidence of success in that the losing party must pay its own costs and part of the costs of the winner.

This decision was picked up by the media. With Rona already in the news, portraying itself as a victim of a predatory U.S. Lowe's, and asking Canadians for support, this decision could not have come at a worse time.

Employers should have a sense of what court decisions are likely to be publicized and what impact, win or lose, coverage could have on them. The publicity, both inside and outside the company, of a loss, is often far more than any court could award.

Sometimes an employer should go to trial to make a point. Other times, it is simply boneheaded.

Howard Levitt is senior partner of Levitt LLP, (levittllp.ca) employment and labour lawyers. He practises employment law in eight provinces and is author of The Law of Hiring in Canada.

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